from the sneaky-bastards dept

In early November, the "final text" of the TPP was finally released. The USTR even posted the thing to Medium, pretending that after years of secrecy it was now being transparent. As we've been told time and time again, the final document is not open to any changes. The only thing left to do was a "legal scrub" which is a final process in which the lawyers comb through the document word by word, basically to make sure there are no typos or out-and-out errors. The legal scrub is not when any substantial changes can be made.

With regard to copyright and related rights piracy provided for under paragraph 1, a Party may limit application of this subparagraph to the cases in which there is an impact on the right holder’s ability to exploit the work, performance or phonogram in the market.

But the impact is massive. As Malcolm explains:

What does this surreptitious change from “paragraph” to “subparagraph” mean? Well, in its original form the provision exempted a country from making available any of the criminal procedures and penalties listed above, except in circumstances where there was an impact on the copyright holder's ability to exploit their work in the market.

In its revised form, the only criminal provision that a country is exempted from applying in those circumstances is the one to which the footnote is attached—namely, the ex officio action provision. Which means, under this amendment, all of the other criminal procedures and penalties must be available even if the infringement has absolutely no impact on the right holder's ability to exploit their work in the market. The only enforcement provision that countries have the flexibility to withhold in such cases is the authority of state officials to take legal action into their own hands.

He further notes that it's obviously a significant change that could end up criminalizing plenty of activity that is infringing, but which is totally not for profit and which may have plenty of legitimate uses. There's been a long push by the legacy copyright players to use the TPP to ratchet up criminal penalties, and many of the worst proposals were stripped from the agreement -- but with this "legal scrub" things have moved massively towards criminalization. And that's a problem.

As Malcolm notes, the USTR's "official" copy of the TPP still shows the old version, meaning that any debate about the provisions is likely to ignore this change -- but the truly "official" version, hosted by New Zealand does show the change.

Malcolm is wondering how this could have happened:

Since the change highlighted above is unarguably a substantive change, the only basis for the change to be made during legal scrubbing would be if it were an error. But is it an error?

We don't know for sure—though EFF has contacted the USTR for clarification, and we will update this post if we receive an answer. But logically, the original text doesn't seem to have been an error, because there seems to be no rational basis why countries should be allowed to limit the availability of ex officio action, but not to similarly limit the availability of the other criminal remedies.

Think about it. What sense is there in sending someone to jail for an infringement that causes no harm to the copyright holder, whether they complain about it or not? And why should it matter that the copyright holder complains about something that didn't affect them anyway? Surely, if the copyright holder suffers no harm, then a country ought to be able to suspend the whole gamut of criminal procedures and penalties, not only the availability of ex officio action.

This is no error—or if it is, then the parties were only in error in agreeing to a proposal that was complete nonsense to begin with. But most likely, this is an underhanded attempt to renegotiate the Trans-Pacific Partnership before its ink is even dry.

It is quite disturbing, especially given the secret nature of the negotiations, to have such a major change slipped in secretly after the "final" version is supposedly done.

Reader Comments

The transparency is deafening

I'm glad that we live in the most free country in the world. Please not that Free is a trademarked term that no longer means what we thought it did. I like how we are allowing private companies to outright dictate legal terms and punishments now as well. Let Freedom Ring.

"Slipped in"?

It is quite disturbing, especially given the secret nature of the negotiations, to have such a major change slipped in secretly after the "final" version is supposedly done.

I am pretty sure that the original wording was explicitly chosen in order to prepare for inconspicuously submarining the wording after it has been "finalized". There are probably a few other such things, stuff where a judiciously added or removed comma completely subverts a text passage.

The whole thing is a superficially masked criminal power grab from corporate crime syndicates with the help of bribed politicians.

Re: "Slipped in"?

Re: Re: "Slipped in"?

Well, the one thing Snowden should have taught us is that conspiracy theories are doomed to fall short of reality and that the government will lie to the people right up to the moment they are exposed and they will continue lying just because they can until people give up and forget.

Nice work Jeremy Malcolm! At least SOMEONE is looking out for the interests of the people. Instead of making campaign contributions to these crooks that are trying so hard to destroy the very freedoms I elected them to protect, I think I'll send that money over to the EFF in the hopes that they will continue to watch out for us.

Re:

Copyright is becoming the instrument of tyranny, as if infringement is a criminal act, it does not require a rights holder complaint to initiate proceedings. Upset a government, and then try to prove that you have the rights to all the files on your devices.

Re:

You forgot that the government can now use any details it happens to discover while looking for terrorism for any legal reasons they wish.... Instant universal criminal charges starting at the millions for anyone with even a few MP3's that they can't prove they purchased.

Creatures of the Night

I can't help but think of the Hollywood creation stories that usually begin with something like, "before there was light, there was darkness" and go on about the demons, dark elves, goblins, or other creatures who wailed with the coming of light, and fled from it; and now desperately seek a return to the universe's original state of pristine darkness.

Tell me all these trade reps, politicians, and corporate lawyers don't look upon light itself as the great corrupter.--

He further notes that it's obviously a significant change that could end up criminalizing plenty of activity that is infringing, but which is totally not for profit and which may have plenty of legitimate uses.

Just exactly the sort of thing the MAFIAA is desperate to regain control of. How interesting.

The EFF is a pro-intellectual property theft, anti-copyright. The word "Commercial gain" doesn't expand to non-commercial use. What it means that websites like Redbubble that sells fan works are in legal trouble.

Bunch of IP stealing 2 year old thinks it's the end of the world. Creators are not corporations, they are real people they have families and they are struggling to make a living with these IP thieves making fan works without paying compensation.

Fair use is only for educational use of copyrighted material. Fan works are not fair use.

Pay up or making something of your own. STOP STEALING PEOPLES ORIGINAL WORKS.

Perhaps if you had children, you should sit with them and teach them drawing someone's fictional character is immorally stealing.

Fan works that are made without permission in compensation hurts the creator.

Complaining, protesting, and pleading to Congress will not TPP. I support the TPP and protection creators original works. If you can't afford paying the original creator of his work, then make something of your own.

This fraud is committed repeatedly

The EU treaty Sweden voted over differ from the "actual" agreement. Every single change harmed citizens. The mass media did not make a fuzz about it. This is the same mass media that pretended that the Pirate Party didn't exist in the last EU election, even though they were Sweden's fifth largest party in the EU parliament.

In EU the text that the representatives were handed out and the text they vote over have differed in significant ways. Every single change harmed citizens. Poland averted such a change once, and publicly stated that they did not dare to repeat it. It were "intellectual property" additions to a text that were voted over in the agricultural and fishery department!

* What happened to new Canadian PM Trudeau’s (Corporate Canada East) promise to read, understand, share his understanding of TPP with consultation & questions from the taxpayers? Have Trudeau & Freeland read the TPP?

* Should Politicians Have to Sully Their ‘Beliefs’ & Sales Pitches with ‘Sordid’ Facts that Come from Actually Reading & Understanding Global Treaties/’Arrangements’? Just the Facts; ‘We’, The People can Draw our Own Conclusions? Unless they’ve been paid via ‘future considerations’…2 Republican Senators Admit that They Have read the TPP.Congress/Parliaments; Deluded, or, Deluding; 'IGNORAMUS et IGNORABIMUS' (I do not know & I will Not Know)?‘Quis custodiet ipsos custodies’? (Who Will Guard the Guards?)

* After New Zealand’s PM admitted that medicines will cost more, have the citizens of New Zealand & other TPP nations also noticed similar moves like Canadian Prime Minister Harper below? ‘To help pay for the harmless taxpayers ‘guilty transgressions’ against Global Corporations in Canada, Prime Minister Harper has recently cut the funding for health care by $36 billion dollars’. (please see article below)

* There is a great deal more to the ‘Foreign’ Treaties/’Arrangements’ (TPP, CETA, TTIP, et al), than Tobacco Carve-out, Piggy-backing Autos & Parts from China to N. America &/or the EU via Japan, Gouging Drug Prices, Fish, IP, Privatizing Public Health Care, Dairy products & Pork; Why didn’t Someone Tell me that the Punitive Penalties of the TPP’s Tribunals would come off the Top of Signatory Governments’ Budgets & Not the Bottom after All other Expenditures? Corporations & Shareholders First and the lil’ guy gets left overs, if any.

• Can Piggy-backing 80% of products from China, BRICS, et al, on to Canadian products exported to the U.S. really lower the taxes of Canadian citizens by 7% if Corporate Canada increases our Taxes (Global Corporate Tribunal Penalties) by 2- 12%+?

• Canada’s Remorseless Prime Minister (Pay for The WAD Accord's Compensations, etc.) & Depriving Citizens, et al, of Due Diligence Info?• There is no melodramatic ‘Boom, or, Bust’ in the TPP & the other Global Corporate Treaties/’Arrangements; it’s just a huge Shift of Liabilities fromCorporations to the harmless lil’ guy and taking Huge amounts from the lil’ guy via Punitive Penalties ‘giving’ it to Shareholders as ‘Profits’; Tort Reform on Steroids is Tort Abolishment.

• How long have Global Corporate Associates been ‘Passing’ Legislation in Anticipation of Suing Once Ratified? ‘Trickle’ Up & Out Economics.

• Corporate America, after its 2008 ‘Tactical Probe’ into Deregulation & Its Sub sequential Buying Short on its Global Recession, is Anxious for Its Legitimized & Globalized (TPP/TTIP/CETA) ‘Full Invasion’; HSBC’s money laundering, Enron’s insider trading, Chase Bank’s fraud, etc. Corporate Canada & its Traditional Big 3 Political Parties are desperate to increase its play time under the ‘skirts’ of Corporate U.S. in the International Glitter Game.